Karen Kearney, partner and medical negligence solicitor at Cantillons Solicitors in Cork, writes on the latest case of cancer misdiagnosis.

The latest cancer misdiagnosis case involving the inspirational Alison McCormack made for very sad viewing on the RTÉ Prime Time Investigates programme last week.

For those of you who might have missed it, Alison was diagnosed with DCIS (Ductal Carcinoma In Situ), a localised form of breast cancer in September 2010 in St James’ Hospital, Dublin. She was told at the time by her treating practitioners that of all the cancers to get, that was the best one because it is actually precancerous - Stage 0 cancer. She was told that it was a cancer that was curable by surgery, which she proceeded to have successfully.

Some two years later, Alison discovered what seemed like a lump in her neck and she was again referred to St James’ Hospital where she had more tests. She was told by her treating practitioner that the original breast cancer was back and that it had now spread into the lymph nodes of her armpit and up to her neck.

Both Alison and her treating practitioners were shocked as it is very rare for DCIS to come back.

Alison underwent a year long treatment plan, including an aggressive six month course of chemotherapy.

Whilst she was undergoing this treatment, she was constantly wondering why her cancer had come back.

In late 2013 she began to ask questions and at her request a meeting in St James’ Hospital was arranged.

At that meeting she was informed for the first time that her cancer had been misdiagnosed. Some weeks later, St James’ Hospital sent her a copy of a report into her missed diagnosis. When Alison read the report she realised the hospital had actually been aware of her misdiagnosis since February 2013 but she had not been told.

In fact, Alison’s cancer was misdiagnosed not once but twice. This negligence has led to disastrous and lifelong consequences for this young woman.

I say that it makes for sad viewing but I’m afraid it is not at all shocking or surprising to me as a medical negligence lawyer. My colleagues and I in Cantillons see this type of scenario arise time and time again.

The system does not seem to see patients and their loved ones as people. When mistakes are made, all too often the instinct is to close ranks and not admit errors and they fear – wrongly as it happens – that admitting mistakes and apologising early, might in some increase the amount of damages that will have to be paid to victims or their surviving loved ones. It’s a group-think reaction that treats the patient and their loved ones as “clients”, rather than people. And ultimately, it is costing the HSE and taxpayers more money than otherwise would be the case.

The Taoiseach Leo Varadkar was asked about Alison’s case in Leaders’ Questions in the Dail last Wednesday the 21st February 2018. He said

“I want to offer her my sympathies and I want to thank her for her bravery in coming forward and making the case public so lessons can be learned and not repeated.

It is a very sad truth that as long as we have a health service that is run by people with the help of machines there will be human error and there will be machine error. The important thing, however, is where errors occur they are admitted, that hospitals and clinicians are honest about their errors and that they are identified and minimised.

There is a duty of candour to inform patients if a mistake has occurred. In order to enforce this, just in the last few months the Oireachtas has passed legislation to protect open disclosure. I appreciate that this law was not in place at the time but is is now in place. We now expect from our hospitals – from management and from clinicians – that they engage in the duty of candour when mistakes have occurred.

A number of things arise out of these statements.

Firstly, the Act that contains the revisions relating to Open Disclosure, the Civil Liability (Amendment) Act 2017, has not yet been commenced into law. It passed all stages of the Oireachtas in late 2017.

Secondly, the proposed amendment to section 12 which would have made Open Disclosure mandatory was ultimately rejected and thus the duty of disclosure is voluntary, not mandatory. Indeed, the Act appears to be more concerned with protecting Doctors and Nurses who do make Open Disclosure than with giving patients and their families the right to Open Disclosure.

This legislation merely supports a National Policy of Open Disclosure which has been in place since November 2013. It is clear, and no more so than in the case of Alison McCormick, that the policy of Open Disclosure is not being complied with.

Ironically, three years ago, in February 2015, our Taoiseach who was then Minister for Health promised to make it mandatory for medical and nursing staff to admit errors that have caused harm to patients. It was within his gift to change the system and instead he did a U-turn for reasons that I have yet to work out.

It is a sad fact that telling truth has to be legislated for and there have to be consequences for those who do not tell the truth. Until that happens, lessons will not be learned and mistakes that we have seen in Alison McCormack’s case and in countless others will be repeated.